Sotomayor Grilled on Late Term Abortion, Doesn't Flinch

WASHINGTON -- One of the Senate's leading pro-lifers tried intently Wednesday to dig deeper into Sonia Sotomayor's legal views on late-term abortion and the role of technology in such cases, but the Supreme Court nominee barely budged and gave little insight into her thinking.

It was the second day of questioning by the Senate Judiciary Committee, which ended "round one" -- involving 30 minutes for each senator -- and began round two (20 minutes). Questioning is expected to conclude Thursday.

Sotomayor's legal record on abortion is thin, although there's a general belief that she supports the Roe v. Wade decision that legalized abortion nationwide.

GOP Sen. Tom Coburn (Okla.), a practicing medical doctor, led the charge for Republicans in asking about abortion.

"Let's say I'm 38 weeks pregnant, and we discover a small spina bifida sac on ... the lower part of the back on my baby. And I feel like I just can't handle a child with that. Would it be legal in this country to terminate that child's life?" he asked.

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"I can't answer that question in the abstract," Sotomayor responded, "because I would have to look at what the ... state's law was on that question.... And even if I knew that, I probably couldn't apply it because I'm sure that situation might well arise before the court."

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Trying another tactic, Coburn asked, "In terms of the advancement of technology, should it have any bearing whatsoever on the way we look at Roe v. Wade?" Coburn then cited the real-life example of a premature baby born at 21 weeks who survived and is now nine months old.

"The [court] has answered a different question," Sotomayor replied. "It's talked about the constitutional right of women in certain circumstances.... As I indicated, the issue becomes one of what is a state's regulation in any particular circumstance."

"I understand," Coburn responded. "All I'm asking is should [technology] have any bearing?"

Sotomayor repeated that she couldn't answer the question because the issue might come before her, assuming she is confirmed.

Said Coburn, "A lot of the [court] decisions have been made based on viability. If we now have viability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen in terms of this right to privacy that's been granted under Roe v. Wade and [the 1992 decision Planned Parenthood v.] Casey?"

"All I can say to you is what the court's done," Sotomayor replied. "... [The issue of technology] is a question that gets created by a state regulation of some sort or an action by the state that may or may not -- according to some claimant -- place an undue burden on [the woman]. We don't make policy choices in the court. We look at the case before us with the interests that are argued by the parties; we look at our precedent and try to apply its principles to the arguments parties are raising."

Not content with that answer, Coburn responded, "I'm reminded of one of your quotes that says you do make policy."

Coburn then tried another line of questions, asking, "Does a state legislature have the right under the Constitution to determine what is death?"

"It depends on what they're applying that definition to," Sotomayor replied. "There are situations in which they might and situations where that definition would or would not have applicability to the dispute before court."

Saying that states have indeed given specific definitions to when a person is considered dead, Coburn told Sotomayor, "We now record fetal heartbeats at 14 days, post-conception. We record fetal brain waves at 39 days, post-conception. And I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues: We have this schizophrenic rule of the law, where we have defined death as the absences of [a heartbeat and brain waves] but we refuse to define life as the presence of those."

Although Coburn failed to get a direct answer, GOP Sen. John Cornyn (Texas) did succeed in getting Sotomayor to talk about her private discussions with President Obama, who nominated her to replace retired Justice David Souter.

Regarding what she discussed with Obama about abortion, Sotomayor said, "I was asked no question by anyone -- including the president -- about my views on any specific legal issue."

Cornyn accepted her answer but expressed concern that the White House had tried to appease abortion rights groups by telling them Obama was confident he and Sotomayor shared the same views on constitutional law. Cornyn asked: "Do you know then on what basis" the White House did that?

"No sir, because you just have to look at my record to know that in the cases that I addressed, on all issues, I follow the law," she responded.

Cornyn also asked Sotomayor about a quote from her former law partner George Pavia, who said, "I can guarantee she'll be for abortion rights."

"I have no idea why he is drawing that conclusion," she responded, "because if you look at my record, I have ruled according to the law in all cases addressed to the issue of the termination of abortion rights, or women's right to terminate their pregnancy. And I voted in cases in which I've upheld the application of the Mexico City Policy, which was a policy in which the government was not funding certain abortion-related activities."

The Southern Baptist Ethics & Religious Liberty Commission came out in opposition to Sotomayor's nomination Monday and a letter from ERLC President Richard Land was introduced into the committee record Tuesday by GOP Sen. Jeff Sessions (Ala.). Sessions said the letter was "raising concerns" about Sotomayor.